Senate Bill 1792, which would change the rules governing Florida’s medical malpractice cases, has now passed in both the state Senate and House, and is heading to Gov. Rick Scott (R).  If passed, the new bill would make Florida one of the toughest states in which to bring a medical malpractice lawsuit.

The Republican-sponsored bill, which was sponsored by Senate President Don Gaetz (R) and supported in the House by his son, Representative Matt Gaetz (R) , has faced sharp criticism from Democrats.

The proposed legislation contains two provisions that concern opponents. The first is a restriction on who can testify as an expert witness. The new legislation proposes that any expert witness called to testify against a defendant physician must practice the exact same type of medicine, and not just a similar field, as was previously required. Representative Cynthia Stafford (D) voiced concern that this restriction would “unduly restrict the pool of experts who will be available to testify.”

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The second provision applies to the period of fact-finding that occurs prior to when a lawsuit is actually filed. The new bill would allow attorneys who are defending physicians to ask subsequent healthcare providers about the patient and the patient’s treatment.

It should be noted that SB 1792 does not require the subsequent physicians to answer, but rather stipulates this type of questioning would be allowed. If passed, this type of questioning would no longer be considered a breach of the patient’s confidentiality. This provision only applies prior to the lawsuit being filed. Once a lawsuit is filed, Florida court rules apply as to what can and cannot be asked.

Opponents say this provision tramples on the privacy of medical records and provider-patient confidentiality. In an earlier debate, Rep. Gaetz (R) argued in favor of the provision on the basis that when plaintiffs sue they are choosing to make their medical condition an issue; therefore, asking about normally private health-related information should be allowable.

In a prepared statement, Florida Medical Association President Vincent DeGennaro expressed his support for the legislation.

“For years, we have fought to correct unfair imbalances in the tort system that are hostile to doctors,” DeGennaro said in a press release. “The passage of (the bill) isn’t just a victory for physicians. Making our state a friendlier place to practice medicine attracts more doctors to Florida, which increases Florida patients’ access to care.”  

Debra Henley, executive director of the Florida Justice Association, disagrees, warning that the legislation “violates patient privacy, harms doctor/patient relationships and may not even be constitutional.”